Saturday, August 24, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Abstract

Excerpted From: Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harvard Law Review 1787 (May 2019) (553 Footnotes) (Full Document)

MaggieBlackhawkAt the heart of constitutional law is the question of how best to constitute, distribute, and limit government power. To better understand our constitutional framework both descriptively and normatively, our canon has long drawn on the paradigm case of slavery and Jim Crow segregation. Our constitutional histories are periodized by this paradigm case--envisioning a wholly distinct constitutional law from the Founding until the nationalist Marshall Court (1787-1835); from the Jacksonian Era of states' rights to the Civil War (1836-1863); from the Civil War to the Reconstruction Era or the so-called “Second Founding” (1863-1877); from the Jim Crow Era to the New Deal Era (1878-1953); and from the Civil Rights Era to the conservative backlash of the Burger and Rehnquist Courts (1954-2001). Our understanding of constitutional law often involves principles of national power and rights derived from the context of slavery or Jim Crow segregation, or from explicit constitutional reference to slavery. Across a range of constitutional questions, slavery and Jim Crow segregation take center stage in defining the history, principles, doctrine, and the constitutional values at stake around the distribution and limitation of government power under our Constitution.

This paradigm functions in the background of our public law as a normative lodestar against which to evaluate constitutional theory, values, and design. Brown v. Board of Education has become the “crown jewel” of our constitutional doctrine against which all constitutional theory is evaluated. By contrast, distributions of power that resemble those that allowed for slavery and Jim Crow segregation are inherently suspect. Too much power in the states and not enough federal oversight or constraints, the paradigm teaches, and America might reenact this or a similar atrocity. Professor Juan Perea coined the term “black/white binary paradigm of race” in the late 1990s to describe what he and other critical race scholars saw as a narrow racial discourse that excluded other racialized communities. Perea documents how the binary paradigm has taken hold across a range of disciplines, from law to political science to history. This binary paradigm serves as a foundation to our public law, as constitutional law and theory have adopted implicitly a focus on slavery and Jim Crow as the sole paradigm case to understand how to avoid subordination of minorities.

Although there is much to learn from this Nation's tragic history with slavery and Jim Crow segregation, resting our public law on a single paradigm case that is defined by the black/white racial binary has led to incomplete models and theories. This Nation's tragic history with colonialism and the violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about how to distribute and limit government power.

In this Article, I explore how this Nation's history with Native Nations and indigenous peoples could offer an additional paradigm case for public law. A survey of canonical constitutional texts reveals a state of near erasure of Native Nations and indigenous peoples. To the extent that federal Indian law is discussed at all within public law, the field is often marginalized into a “tiny backwater.” Because the federal government recognizes the inherent sovereignty of Native Nations, federal Indian law and policy are largely viewed as sui generis. Although the colonized status of Native peoples does render certain aspects of federal Indian law exceptional, public law still has much to learn from federal Indian law. In fact, if we define federal Indian law as the law of national power and rights developed in the context of Native Nations and Native peoples, much of constitutional law actually is federal Indian law.

Interactions with Native Nations, Native peoples, and Native lands were central to the development of many public law doctrines. The Civil War and Reconstruction Amendments did fundamentally reshape the federalist framework, requiring translation of constitutional values into radically changed circumstances. But so, too, did westward expansion through colonial rule shape the earliest meaning of the Constitution and require translation of that meaning into radically changed circumstances. The United States of the early nineteenth century was entirely changed from the United States of the early twentieth century, and that difference is attributable in large part to our constitutional framework's facilitation of the colonial project.

Chief Justice John Marshall and his “nationalist” Court no doubt reaffirmed national power vis-à-vis the states in McCulloch v. Maryland and Gibbons v. Ogden. However, it is challenging to grasp the breadth of Chief Justice Marshall's nationalist project, and his motivation, without the so-called “Marshall Trilogy”--the set of cases that forms the foundation of Indian law doctrine. In these cases, Chief Justice Marshall rooted the power over Indian affairs and Indian lands firmly in the national government, providing fuel for the engine of westward expansion and its radical transformation of the national and constitutional landscape. Placing the Trilogy at the center of antebellum nationalism is also more historically accurate: throughout the 1820s and 1830s, “issues of Indian policy and Indian removal received more attention in the nation's periodicals than did issues of tariffs and the Bank of the United States.” Moreover, our modern constitutional doctrines often contain analogues within federal Indian law. Although controversial, the Court has adopted a highly deferential approach to the Commerce Clause in the context of Native Nations, similar to its deferential approach to the Commerce Clause in the context of Jim Crow segregation. The domestic power of the President in the context of war, treaty making, detention, and recognition developed in the context of Indian affairs in the nineteenth and twentieth centuries. Modern administrations continue to draw on this historical precedent in arguing for an expansive domestic presidential power in the War on Terror. While the recognition of inherent tribal sovereignty may be “exceptional,” the paradigm of colonialism and federal Indian law is not, and it provides a range of similar interventions across public law.

Many of these doctrines belong in the canon. Federal Indian law even has its own Brown to offer. Federal recognition of inherent tribal sovereignty and of each Native Nation's ability to self-govern should form a “crown jewel” in our constitutional canon on par with Brown. The United States is the only country in the world to recognize the inherent sovereignty of Native Nations within its borders and to recognize the ability of Native Nations to regulate and govern reservation lands. However imperfect, our constitutional law with respect to Native Nations is cause for similar celebration. Akin to Brown, recognition of inherent tribal sovereignty should serve as lodestar to evaluate constitutional theory. Similarly, “[a] constitutional theory that cannot” support the recognition of inherent tribal sovereignty, should be “a constitutional theory without traction.”

However, many other doctrines belong in the anticanon. Like slavery and Jim Crow segregation, the failings of federal Indian law can inform our debates over constitutional values and, in particular, about the abuse of state power. It strains reason that public law debates over the distribution and limitation of executive and legislative power do not involve deep reflection about America's history with colonialism and, in particular, the Indian reservation and boarding school system. From the Founding, the national government has had a direct hand in the violent dispossession of Native peoples, the internment of Natives into reservation camps, and efforts to “kill the Indian and save the man” by forcing Indian children into boarding schools run by the federal government. The constitutional law underlying these tragedies--specifically, the “plenary power” or “inherent powers” doctrine recently reaffirmed to uphold Executive Order 13,769, or the so-called “travel ban” be reevaluated following recognition of its deep colonial roots. Centering federal Indian law demonstrates that Korematsu v. United States, decided in 1944, continued a common practice of federal concentration camps and was not an outlier case attributable to the exigency of war. Korematsu should not comprise the sole mention in our canon of the inherent dangers of unchecked national power in the context of war and race.

Beyond simple canonization, the paradigm of colonialism and federal Indian law could contribute to a fundamental rethinking of public law principles. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete binary paradigm on which those principles rest, that are in need of reform. A full catalogue is beyond the scope of a single Article, but I offer a case study here in the hope that it will invite more. In particular, the paradigm of Indian law unsettles many of public law's current presuppositions about how best to distribute and limit power in order to protect minorities. Constitutional theory generally presumes that minorities are best protected with national oversight, rights-based frameworks, and judicial solicitude. But strengthening national power was no panacea for the subordination of Native peoples. The intervention of national power into federal Indian law and policy in the late nineteenth century actually furthered majority tyranny through the implementation of allotment and the reservation system. Integrationist, rights-based frameworks like that of Brown are feared in Indian law, rather than celebrated. National constitutional rights have long been used as a tool to further the colonial project against Native peoples--first as a tool of dispossession during the allotment era and more recently as a means to undermine tribal sovereignty by using the force of national rights to disrupt the power of tribal governments.

Instead, the national government has best protected Native peoples by bestowing power, not rights, through the recognition of inherent tribal sovereignty. Contrary to the tenets of “[our] father's federalism,” localism has empowered Native Nations through the ability to self-govern. Recently, public law scholars have begun to identify non-rights-based or structural forms of protection for minorities like federalism, unions, and petitioning. However, much of this scholarship is still rooted in the binary paradigm. Scholars have been increasingly calling for a paradigm that looks beyond rights and toward power; a paradigm that provides the language to talk about majority-minority institutions as not simply “segregated” and one that envisions minority rule as a natural and integral aspect of our democracy. Federal Indian law could provide that paradigm.

The paradigm of federal Indian law offers equally surprising lessons on which branch is best suited to protect against majority tyranny. The judiciary, long viewed as the ideal branch to empower in order to protect minorities, has been devastating to Indian law. Throughout the twentieth century, it has often been Congress and the Executive--and the ability to access the lawmaking process through petitioning and lobbying than the courts, that have provided sanctuary. Debates over the role of the judiciary and judicial review should look beyond antidiscrimination law and the paradigmatic case of slavery and Jim Crow segregation in order to better articulate the Court's role as arbiter of our constitutional values. Much of federal Indian law is absent from the constitutional law canon because much of it exists outside the courts. This is largely the result of the Supreme Court often declining to adjudicate questions of national power over Indians--holding out the very question of colonialism as a political question. As our modern understanding of constitutional law reaches beyond the simple court-centric model of constitutional meaning, federal Indian law might find a more natural fit within our canon. But that incorporation should not also preempt critique of the Court's role vis-à-vis constitutional values in the context of colonization. Modern Elysians might view clearing discrimination from the channels of democracy as sufficient to address the artifacts of slavery and Jim Crow segregation, but the channels of political change, clear or not, do little to address the artifacts of colonialism. Forcing colonized peoples to engage in our democratic process to avoid subordination only furthers the colonial project.

This Article proceeds in three parts. Part I introduces the central thesis of this Article in offering federal Indian law and this Nation's history with colonialism as a paradigm case within our public law. Part II notes a range of substantive public law areas in which the Native Nations and colonialism have been central to the development of those doctrines and opens a discussion as to whether certain federal Indian law doctrines belong in the canon or anticanon. Part III provides an example of how federal Indian law might contribute to a fundamental rethinking of certain general public law principles and, in particular, the distribution and limitation of power in order to prevent government abuse of minorities.

[ . . .]

Rather than declaring federal Indian law as sui generis and consigning it to a tiny backwater, scholars of public law must recognize the centrality of federal Indian law to their field. Across a range of substantive areas, the constitutional law, development, and history of the United States has been shaped by its interaction with Native Nations and Native peoples. This is not an easy history to face, but there are lessons in its failures and there is more to celebrate than we now recognize. Many of the models and theories now taken for granted within public law rest on the binary paradigm of black/white relations and, although there is much to learn from this Nation's history with slavery and Jim Crow segregation, it has led to incomplete models and theories. The history of American colonialism and its treatment of Native Nations and Native peoples offers different, yet equally important, lessons on the strengths and failings of our constitutional framework.

Centering federal Indian law could also reveal the colonial roots of certain doctrines, allowing public law scholars to build and refine the canon and anticanon. This Article provides a roadmap by which these scholars might trace their way back to the roots of their fields within colonialism and federal Indian law. With respect to the canon, recognition by the United States of inherent tribal sovereignty should be included within our canon and as celebrated as Brown. The Court's recent decision in Trump v. Hawaii, for example, relied on the doctrine of inherent powers to uphold the so-called travel ban. Given that the source of inherent power sprung from the Taney Court's articulation of the imperialist doctrine of discovery and that the power has been used over the last two centuries to justify concentration camps of all kinds on United States soil, perhaps it is time to rethink the doctrine's vitality. Similarly, invocation of nineteenth-century war power and practice with respect to Native peoples ought to inspire similar debate over whether these colonial doctrines should join Dred Scott and Plessy v. Ferguson within our anticanon.

Moving beyond the binary paradigm and centering federal Indian law within public law could not only add greater context and accuracy to a wide range of substantive areas, it could fundamentally reshape many of the general presuppositions and principles upon which public law rests. Federal Indian law is often declared “incoherent,” because much of it is at odds with general public law principles. But it is instead our general principles of public law that are in need of reform. For example, national power is generally presumed to be the best solution to minority oppression. But this presumption arises from examining the history of slavery and ignores the history of colonialism. By contrast to Reconstruction, intervention of the national government into Indian affairs in the late nineteenth century only furthered the oppression of Native peoples under the reservation system. In particular, federal Indian law also has important lessons for public law and the puzzle of minorities. It teaches public law that power, and not simply rights, can be used to protect minorities. The recognition of the inherent tribal sovereignty of Native Nations mitigates colonialism and shields Native peoples from further subordination by fostering self-governance. Recognizing the grant of power to Native peoples as an integral and longstanding aspect of our constitutional framework could help scholars recognize these grants of power across public law generally. From federalism to unions to petitioning, there is a range of tools by which our constitutional law distributes power among the polity. Centering federal Indian law within public law allows us to better recognize, identify, and understand these tools within our constitutional framework. 


(Fond du Lac Band of Lake Superior Ojibwe) Assistant Professor, University of Pennsylvania Law School.

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